What is the Process to File for Child Custody in New Jersey?

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Filing for custody in New Jersey is as easy as including the request in your complaint for divorce. From there, the process becomes a little more complicated. New Jersey courts don't want to decide custody issues for you if they don't have to, so the state mandates some procedures to help you try to reach an agreement with your spouse on your own.

Step 1

Decide on the custody terms you want. You and your spouse can share joint legal custody where both of you contribute to making major decisions for your children, or you can request sole legal custody, where you're the only parent to make such decisions. If you would like your children to live with you most of the time and have visitation with their other parent, this is "primary residential custody" in New Jersey and you'd be the "parent of primary residence."

Step 2

Use your divorce complaint to request the custody terms you'd like the court to order. If your spouse filed for divorce first, you can make these same requests in your answer and counterclaim to his complaint. At the end of each document, there's a section called your "prayers for relief." You can use this section to spell out the custody terms you've decided on.

Step 3

Attend the parent's education program, which is mandatory under New Jersey's legislative code for all divorce cases that involve minor children. The program is a preparatory course for attending custody mediation, which is also mandatory.

Step 4

Attend mediation with your spouse. A neutral third party – the mediator – will attempt to help you agree to a parenting plan and custody terms. The mediator can't force you to agree to anything you're not comfortable with, but can give you suggestions regarding what might work best for your children in your particular situation.

Step 5

Review the mediation agreement, if you reach one. The mediator will write up the terms and send a copy to you or your attorney. The agreement can then be incorporated into a consent order, which can in turn merge with your divorce judgment when you divorce.

Tips & Warnings

New Jersey allows you to modify custody agreements or the court-ordered custody provisions in your divorce judgment if things change post-divorce and your parenting plan is no longer working. You and your ex can make changes by agreement by filing a new consent order with the court. If you don't agree, you can file a motion with the court and ask a judge to change the terms. In both cases, the new order would supersede the terms in your judgment. If you file a motion, you'd have to prove a material change of circumstances at a court hearing.

If you don't reach a custody agreement in mediation, the court will decide custody for you at trial. Like all states, New Jersey bases custody decisions on what's in the best interests of your children. The best interests standard is a list of statutory factors a judge must consider when deciding in which home your children will live most of the time. In New Jersey, these factors include continuity and stability for your children, so they're not uprooted from the parent who was their primary caregiver when your marriage was intact.

About the Author

Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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